Harring v. Martens

Filing 12

ORDER VACATING 10 FINDINGS AND RECOMMENDATIONS; ORDER DEEMING First Amended Complaint Timely Filed signed by Magistrate Judge Barbara A. McAuliffe on 8/1/2014. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID HARRING, 12 Plaintiff, 13 No. 1:14-cv-0310 AWI-BAM ORDER VACATING FINDINGS AND RECOMMENDATIONS v. (Doc. 10) 14 CHRISTOPHER MARTENS, 15 Defendant. 16 ORDER DEEMING FIRST AMENDED COMPLAINT TIMELY FILED (Doc. 11) 17 18 Plaintiff, David Harring (“Plaintiff”), a state prisoner housed at Kern Valley State Prison, 19 proceeding pro se and in forma pauperis, has filed this civil action seeking monetary damages 20 and other relief. 21 On April 16, 2014, the Court dismissed Plaintiff’s initial complaint in this matter for 22 failure to state a claim upon which relief may be granted and ordered Plaintiff to file an amended 23 complaint within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). On May 22, 2014, the 24 Court granted an extension of time for plaintiff to file an amended complaint. Plaintiff failed to 25 file a timely First Amended Complaint, and on June 26, 2014, this Court issued Findings and 26 Recommendations to dismiss this action for Plaintiff’s failure to obey the Court’s order. (Doc. 27 10). 28 1 1 On July 23, 2014, Plaintiff filed objections to the Findings and Recommendations,1 and 2 also a First Amended Complaint. (Doc. 11). Plaintiff cites delays by the prison mail room for 3 his untimely First Amended Complaint. Plaintiff asserts that he prepared his First Amended 4 Complaint well before the submission deadline and served it on the prison mail room in a timely 5 manner. Plaintiff requests the Court to excuse the delay, which was out of his control. 6 In light of Plaintiff’s objections and his submission of the First Amended Complaint on 7 July 23, 2014, the Court finds good cause to vacate the Findings and Recommendations and deem 8 the First Amended Complaint timely filed. Accordingly, IT IS HEREBY ORDERED that: 9 1. 10 11 VACATED; 2. 12 13 The Findings and Recommendations filed June 26, 2014 (Doc. 10) are Plaintiff’s First Amended Complaint, filed on July 23, 2014, is deemed timely filed (Doc. 11); and 3. 14 The Court shall screen the First Amended Complaint in due course. 15 16 IT IS SO ORDERED. 17 Dated: /s/ Barbara August 1, 2014 A. McAuliffe UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 _ 1 Plaintiff’s objections are styled as a motion for reconsideration to file his amended complaint 2

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